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ELRCPartially AllowedCase No 31 of 2017· [2018] KEELRC 760 (KLR)

Mary Wairimu v Kenya National Union of Nurses [2018] KEELRC 760 (KLR)

Employment and Labour Relations Court
9 October 2018
3,169 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan union's employee won Kshs 280,000 plus costs after the court found her 'redundancy' dismissal violated the Employment Act.

What this practically means

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Executive summary

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The Claimant, formerly an industrial relations officer in the Respondent union's central region, sued over the termination of her employment on 8th January 2016. She pleaded that her dismissal was unfair, discriminatory and without notice to show cause or reasons, and sought unpaid leave, severance pay, a certificate of service, 12 months' compensation, damages and costs. The Respondent denied unfair termination, asserting the Nyeri office was abolished and her services declared redundant after she failed to file a 2015 work report and refused redeployment to head office. It counterclaimed for allegedly underserved salary, later amended to Kshs. 790,000/- for 19 months. The Claimant testified; the Respondent closed its case without calling any witness. The court found the Respondent had dismissed the Claimant within the 45-day period it had granted her to relocate to Nairobi after she had reported as directed, which was erroneous. The purported redundancy failed to comply with Section 40 of the Employment Act, leave dues being paid only during the pendency of the suit. Under Section 43 the employer bore the burden of proving the reason for termination and failed, the Respondent being unsure whether it acted for non-performance or refusal to deploy. The dismissal was therefore unfair. The counterclaim, resting on allegations of unfiled work reports, remained unproved and was dismissed with costs. Judgment was entered for the Claimant for one month's notice pay of Kshs. 40,000/-, six months' compensation of Kshs. 240,000/-, costs, and a certificate of service, subject to statutory deductions under Section 49.

Key legal issues

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01

Whether the redundancy complied with Section 40 of the Employment Act

Holding

The purported redundancy did not comply with Section 40; leave dues were paid only during the pendency of the suit and the statutory requirements were not met, rendering the dismissal unfair

Reasoning

The court set out the Section 40 conditions: due regard to seniority, skill, ability and reliability in selection; payment of leave in cash; one month's notice or wages in lieu; and severance at not less than fifteen days' pay per completed year of service. None of these were done for the Claimant, whose leave dues were paid only after suit was filed. The Respondent was also unsure whether it relieved the Claimant for incompetence/non-performance or for refusing deployment.

p. 3
02

Whether the Respondent proved a valid reason for termination under Section 43

Holding

The Respondent failed to demonstrate that the dismissal was justified; the dismissal was unfair

Reasoning

The burden lay on the employer to show the reason for termination. The Respondent closed its case without calling any witness, and its submissions were contradictory as to whether the Claimant exited for incompetence and non-performance or for refusing redeployment. The Claimant had reported to Nairobi as directed and was dismissed within the 45-day relocation period granted to her, which the court found erroneous.

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03

Whether the Respondent's counterclaim for undeserved salary for 2015 was proved

Holding

The counterclaim remained mere allegations, was unproved and was dismissed with costs

Reasoning

The Respondent alleged the Claimant did not file a 2015 work report, warranting refund of her 2015 salary, later increased to 19 months' salary. The Respondent, however, closed its case without calling a witness, so the allegations were never tested or proved. The Claimant had produced the work reports alongside the emails forwarding them, and no warning or deduction for the sums was ever made.

p. 3

Legal principles established

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  • An employer must comply with the conditions in Section 40 of the Employment Act before terminating on account of redundancy, including payment of leave dues, notice and severance pay
  • Under Section 43 of the Employment Act the employer bears the burden of showing that there was reason for the termination
  • An employer who dismisses an employee during a period given for redeployment, after the employee has responded as expected, acts erroneously and the dismissal is unfair

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent for one month notice pay Kshs. 40,000/-
  2. 2.Compensation for the unlawful dismissal amounting to 6 months pay Kshs. 240,000/-
  3. 3.Costs of the suit to the Claimant
  4. 4.Certificate of service to be issued
  5. 5.Payments in (a) and (b) to be subjected to statutory deductions per Section 49 of the Employment Act
  6. 6.Counterclaim dismissed with costs to the Claimant

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 40(1)
  • Employment ActSection 40(2)
  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 44(1)(e)
  • Employment ActSection 49 and 49(4)(b), (k), (i), (m)
  • Employment and Labour Relations Court Act (jurisdiction provision cited as Section 12(3)(vi) of the Employment Act in the judgment)Section 12(3)(vi)

Cases cited (4)

  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
  • National Union of Mine Workers and Another v Commission for Conciliation, Mediation and Arbitration and Others
    (JR 2512/2007) [2012] ZALCJHB 80; (2013) 34 ILJ 945 (LC) 16 AUGUST 2012 (46)
  • Evans Kamadi Misango v Barclays Bank of Kenya Limited
    [2010] eKLR
  • Bamburi Cement Limited v William Kilonzi
    [2015] eKLR
Jurisdiction invoked
Section 12(3)(vi) of the Employment Act (as invoked by the Claimant)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mary Wairimu v Kenya National Union of Nurses [2018] KEELRC 760 (KLR)", Case Analysis (2018). Case No 31 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/760/eng@2018-10-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.